Citation Nr: 0120909
Decision Date: 08/15/01 Archive Date: 08/16/01
DOCKET NO. 99-01 606 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to a permanent and total disability rating for
pension purposes.
ATTORNEY FOR THE BOARD
James R. Siegel, Counsel
INTRODUCTION
The veteran had active duty from April 1966 to January 1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 1998 rating decision of the
Regional Office (RO) that denied the veteran's claim for
pension benefits. When this case was before the Board in
August 2000, it was remanded for additional development of
the record. The case is again before the Board for appellate
consideration.
In the August 2000 Board decision, the RO was directed to
consider a claim for service connection for bilateral hearing
loss. However, there is no indication in the record that the
RO did so. Accordingly, this matter is again referred to the
RO for appropriate consideration.
FINDINGS OF FACT
1. The veteran was born in August 1944 and has completed
college. He has work experience as a salesman and in
management.
2. His principal innocently acquired disabilities include
atrial fibrillation, a bilateral hearing loss, mild anemia,
hemorrhoids and the residuals of an umbilical hernia repair.
3. The veteran is currently employed in a management
position.
4. The veteran's disabilities do not render him incapable of
substantially gainful employment, consistent with his age and
education.
CONCLUSION OF LAW
A permanent and total disability rating for pension purposes
is not warranted. 38 U.S.C.A. § 1502, 1521 (West 1991);
38 C.F.R. §§ 3.321(b)(1), 3.340, 3.342, 4.15, 4.16, 4.17
(2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board observes that recently enacted legislation has
eliminated the well-grounded claim requirement, has expanded
the duty of the Department of Veterans Affairs (VA) to notify
the veteran and the representative, and has enhanced its duty
to assist a veteran in developing the information and
evidence necessary to substantiate a claim. See Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (Nov. 9, 2000). Since these legislative changes serve
to eliminate the "gatekeeping" function in the VA claims
process imposed by the standard for a well-grounded claim,
see, e.g., Hensley v. West, 212 F.3d 1255, 1260 (Fed. Cir.
2000), the Board is of the opinion that the new legislative
changes are more favorable to the veteran. See Karnas v.
Derwinski, 1 Vet. App. 308, 312-13 (1991).
The Board finds that VA has met its duty to notify and assist
in the veteran's case. The veteran has not indicated that
there are any additional medical records that could be
obtained. The RO has obtained the veteran's VA medical
treatment records reflecting the recent treatment he has
received for his various disabilities. Additionally, the RO
provided the veteran with several examinations in relation to
his disabilities.
The record discloses that the October 1998 rating decision
provided the veteran with the reasons and bases for the
denial of his claim. The November 1998 statement of the case
and the February 2000 and May 2001 supplemental statements of
the case provided the veteran with the applicable criteria
for a permanent and total disability rating. These
notification letters were sent to the veteran's latest
address of record. These notifications were not returned by
the United States Postal Service as undeliverable,
see Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (citing
Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992) (discussing
that the presumption of regularity of the administrative
process applies to notices mailed by the VA)), and thus the
Board concludes that the veteran has received these
determinations.
Accordingly, the Board finds that all information and
evidence have been developed to the extent possible and that
no prejudice will result to the veteran by the Board's
consideration of this matter. See Bernard v. Brown, 4 Vet.
App. 384, 393-94 (1993).
Factual background
VA medical records dated in July 1998 are of record. A chest
X-ray study disclosed no gross lung lesion. It was indicated
that small pleural effusions were possible, but could not be
confirmed or excluded. An electrocardiogram revealed atrial
fibrillation with rapid ventricular response with premature
ventricular or aberrantly conducted complexes. It was
concluded that the electrocardiogram was abnormal.
The veteran was admitted to a VA hospital in July 1998 with
complaints of lower abdominal pain, cramp-like, and reduced
appetite with constipation. A history of alcohol cirrhosis
diagnosed four weeks earlier was noted. The hospital report
indicates that the veteran had not visited a physician for
many years, and had not been followed up by anyone in the
clinic. On a review of systems, it was noted that the
veteran occasionally had ringing in the ears. A cardiac
examination revealed no gallop or murmurs. There was an
irregular rate. Blood pressure was 120/80. An evaluation of
the chest showed scattered bibasilar crackles that cleared
with coughing. Bowel sounds were difficult to hear. There
were gross ascites. The abdomen was tight and distended.
The spleen was palpable, with some degree of splenomegaly.
The veteran had hemorrhoids. The prostate was moderately
enlarged. He showed a small degree of asterixis with a
bilateral gross tremor. A clinical note during the
hospitalization indicated the veteran had portal
hypertension. The diagnoses on discharge were alcoholic
cirrhosis, alcohol abuse and atrial fibrillation.
Medications were prescribed.
The veteran was again hospitalized by the VA later in July
1998. He was brought to the emergency room because he had
been confused and disoriented. An electrocardiogram revealed
no evidence of ischemic changes. A social work note during
the hospitalization revealed that the veteran had been
downsized from an executive position five years earlier and,
had not been able to find another job, became depressed and
started to drink. The diagnoses on discharge were ascites,
liver cirrhosis due to ethanol and atrial fibrillation.
The veteran submitted a claim for pension benefits in
September 1998. He reported that he had been born in August
1944 and had completed four years of college. He reported
having work experience as a salesman, and that he last worked
in June 1998.
The veteran was afforded a VA general medical examination,
with attention to alcoholic cirrhosis and atrial
fibrillation, in March 1999. It was reported that the
veteran apparently had had increasing abdominal and lower
extremity edema over a couple of months when he was
hospitalized in July 1998. He denied true chest pain, but
reported that this sternum hurt at times. He stated that
climbing stairs caused dyspnea, but he had no dizziness,
fainting or lightheadedness. He indicated that, at times, he
had blood in his stools as he had hemorrhoids. He reported
marked fatigue and that he became sweaty, shaky and weak
sometimes after meals. Blood pressure was 122/68. His heart
rate was regular without murmur. The lungs were clear,
bilaterally. The abdomen was soft with some slight
distension. There was an umbilical hernia that was soft and
easily reducible. There was mild tenderness over the liver.
No superficial abdominal veins were noted. A rectal
examination revealed non-inflamed hemorrhoids. The stool was
slightly guaiac positive. There was trace edema in the lower
extremities, with some discoloration and stasis changes of
the lower extremities as well.
An abdomen-kidney, ureter and bladder X-ray study showed that
the bowel gas pattern was unremarkable. There was no
evidence of obstruction or free air seen. No abnormal
calcifications were seen. There was a soft tissue density in
the lumbosacral region, but clinical correlation and/or
further evaluation was recommended. A chest X-ray study was
normal. A complete blood count revealed that hemoglobin was
12.3 g/dl, and hematocrit was 38.7%. Each of these values
was noted to be low. An echocardiogram revealed aortic valve
sclerosis, normal left ventricular systolic function and
minimal mitral regurgitation and tricuspid regurgitation. A
Doppler study revealed normal aortic velocities with no
evidence
of stenosis or insufficiency and normal right ventricular
systolic pressure. The diagnoses were cirrhosis of the liver
with mild increase in liver function test and minimal
ascites, mild anemia and atrial fibrillation, with normal
left ventricular systolic function.
The veteran was hospitalized by the VA in May 1999 for an
incarcerated umbilical hernia and symptoms and signs of
obstruction. While hospitalized, he underwent an
uncomplicated repair of the umbilical hernia. The diagnosis
was incarcerated umbilical hernia.
The veteran was afforded an audiometric examination by the VA
in February 2001. He complained of difficulty understanding
in noise and groups of people. He stated that he had
bilateral tinnitus. Following an audiometric test, the
diagnostic summary was that the veteran had a moderate to
profound sensorineural hearing loss in his right ear and a
mild to profound sensorineural hearing loss in his left ear.
A VA cardiology examination was conducted in March 2001. The
veteran denied a history of palpitations, syncope, exertional
chest discomfort, orthopnea or marked or significant
worsening exertional dyspnea. He admitted to occasional
short nonexertional chest discomfort. He stated that he felt
that he could walk about two miles at a moderate pace or
ascend about six flights of stairs before being limited by
dyspnea. It was indicated that the veteran had no history of
hypertension. Blood pressure was 112/76. There was no
gallop and no murmur was heard. The abdomen was soft and
nontender. The examiner concluded that the veteran had a
history of atrial fibrillation that was as likely as not to
be ethanol-related, because no other obvious cause had been
found. It was noted the history and physical examination did
not provide evidence for any of the other explanations and,
on examination, the current cardiac rhythm was highly likely
to be sinus rhythm. An electrocardiogram and treadmill
stress test revealed sinus bradycardia, a short "PR"
interval, and was otherwise within normal limits.
Additional VA outpatient treatment records dated from 1998 to
2001 have been associated with the claims folder. It was
noted in August 1998 that the veteran had a possible recent
onset of atrial fibrillation with no gross evidence of
significant organic heart disease, possibly alcohol induced.
It was reported in September 1999 that the veteran was
working a lot, and had two jobs. In October 2000, it was
indicated that the veteran had severe liver disease secondary
to ethanol, and that he had been abstinent since August 1998.
It was stated that he was working a lot and was in
management. It was again reported in April 2001 that the
veteran was in management and was working a lot.
A printout dated in May 2001 indicated that the veteran's
claim for Social Security benefits had been denied.
Analysis
The United States Court of Appeals for Veterans Claims has
provided an analytical framework for application in pension
cases. Talley v. Derwinski, 2 Vet. App. 282 (1992); Roberts
v. Derwinski, 2 Vet. App. 387 (1992); and Brown v. Derwinski,
2 Vet. App. 444 (1992). The holdings in these cases are to
the combined effect that the VA has a duty to insure: that an
appropriate rating for each disability of record is assigned
using the approach mandated by Schafrath v. Derwinski, 1 Vet.
App. 589 (1991); that the "average person" and
"unemployability" tests are both applied; and that if the
benefit may not be awarded under the "average person" or
"unemployability tests, a determination must then be made
whether there is entitlement to non service-connected
disability pension on an extraschedular basis.
The average person (or objective) test is rooted in 38
U.S.C.A. § 1502(a)(1) and 38 C.F.R. § 4.15 and mandates that
total disability will be found to exist when there is present
any impairment of mind or body which is sufficient to render
it impossible for the average person to follow a
substantially gainful occupation, provided that the
impairment is reasonably certain to continue throughout the
life of the disabled person.
The unemployability (or subjective) test arises from 38
U.S.C.A. § 1521(a) and 38 C.F.R. §§ 3.321(b)(2), 4.17 and
mandates that where it is shown that the appellant's
disabilities meet the percentage requirements of 38 C.F.R.
§ 4.16, and it is shown that they are permanent in nature, a
determination should be made whether such disabilities render
him or her incapable of substantially gainful employment. If
so, the veteran again meets the requirements of the law for
the benefit at issue.
Finally, if the veteran does not meet either the "average
person" or the "unemployability" tests, a determination is
required as to whether the veteran should be granted
entitlement to non service-connected disability pension on an
extraschedular basis, pursuant to the provisions of 38 C.F.R.
§ 3.321(b)(2), on the basis that he or she is unemployable by
virtue of age, occupational background or other related
factors.
The overriding factor in this case is that the veteran has
been employed since September 1999. He reports that he is
working in a management position, and this suggests that the
job cannot be deemed to be marginal employment. The fact
that he is now working clearly undermines his assertion that
he cannot work due to the severity of his disabilities. In
claims for a permanent and total disability rating for
pension purposes, ordinarily the Board would individually
rate each of the veteran's disabilities. Since the veteran
is currently employed, such an exercise is unnecessary, as he
obviously does not meet the schedular standards. Nor would
it be appropriate under the circumstances of this case to
conclude that a permanent and total disability rating should
be assigned on an extraschedular basis. Accordingly, the
Board is not persuaded that the veteran's disabilities are so
incapacitating as to preclude the performance of
substantially gainful employment. Therefore, entitlement to
permanent and total disability rating for pension purposes,
to include extraschedular consideration, is not warranted.
ORDER
A permanent and total disability rating for pension purposes
is denied.
U. R. POWELL
Member, Board of Veterans' Appeals